NATIONAL LAWYERS CAMPAIGN FOR JUDICIAL TRANSPARENCY AND REFORMS & ORS. versus UNION OF INDIA & ORS. on 12 March 2019

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B1. In the course of arguments in the present Writ Petition, ShriMathews Nedumpara, learned counsel appearing on behalf of the peti-tioners, alleged that Judges of the Court are wholly unfit to designatepersons as Senior Advocates, as they only designate Judges’ relativesas Senior Advocates. On being asked whether such a designation shouldbe granted as a matter of bounty, Shri Nedumpara took the name of ShriCFali S. Nariman. When cautioned by the Court, he took Shri Fali S.Nariman’s name again. Thereafter, on being questioned by the Court asto what the relevance of taking the name of Shri Fali S. Nariman was,he promptly denied having done so. It was only when others present inCourt confirmed having heard him take the learned Senior Advocate’sDname, that he attempted to justify the same, but failed to offer any ad-equate explanation.

2. We are of the view that the only reason for taking the learnedSenior Advocate’s name, without there being any relevance to his namein the present case, is to browbeat the Court and embarrass one of us.EShri Nedumpara then proceeded to make various statements unrelatedto the matter at hand. He stated that, “Your Lordships have enormouspowers of contempt, and Tihar Jail is not so far.” He further submittedthat lawyers are like Judges and are immune from contempt, as they areprotected by law. He also stated that there can be no defamation againsta lawyer, as also there can be no contempt proceedings against a lawyer,Fas the same would impinge on the independence of lawyers, which theyought to enjoy to the fullest. All these statements directly affect theadministration of justice, and is contempt in the face of the Court.

3. This is not the first time that this particular advocate hasattempted to browbeat and insult Judges of this Court. In point of fact,Gthe style of this particular advocate is to go on arguing, quoting Latinmaxims, and when he finds that the Court is not with him, starts becomingabusive. We also find that this advocate is briefed to appear in hopelesscases and attempts, by browbeating the Court, to get discretionary orders,which no Court is otherwise prepared to give. We have found that the H

vast majority of appearances by this advocate before us have been incases in which debtors have persistently defaulted, as a result of whichtheir mortgaged properties have to be handed over to secured creditorsto be sold in auction. It is at this stage that Shri Nedumpara is briefed tosomehow put off the auction sale. Even the present Writ Petition is acase in which a review petition against the judgment of this Court inIndira Jaising v. Supreme Court of India, (2017) 9 SCC 766 has alreadybeen dismissed. With full knowledge that a second review petition isbarred by Order XLVII Rule 5 of the Supreme Court Rules, 2013, ShriNedumpara seeks a second review in the form of a writ petition filedunder Article 32 of the Constitution of India. Quite apart from this, thesaid advocate has already indulged in conduct unbecoming of anadvocate, which has been noticed by an order dated 19.11.2018 in SpecialLeave Petition (Civil) No.26424 of 2018, which is set out hereinbelow:

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1. I.A. Nos. 163019 of 2018,163020 of 2018 and 164145 of 2018in S.L.P. (C) No. 26424 of 2018 are dismissed. Shri MathewsNedumpara, Advocate for the Petitioner, appeared before us on22[nd ]October, 2018. He stated that Rs.80 lakhs would be paidwithin a period of four weeks from 22[nd] October, 2018. The Courtgranted him a period of one week from 22[nd ]October, 2018 tomake the necessary payment. The order clearly stated:

“If the aforesaid payment is not made within one week, thespecial leave petition shall be dismissed without furtherreference to this Court.”

2. No such payment was made within the period of one week andhence, the special leave petition stood dismissed without furtherreference to this Court. However, on 14[th ]November, 2018, ShriNedumpara, appearing with an AOR, mentioned the same matterbefore us without informing us that the S.L.P. had already stooddismissed without reference to this Court. By suppressing theorder dated 22[nd ]October, 2018, Shri Nedumpara obtained an orderfrom this very Bench on 14[th] November, 2018 stating:

“List on Monday, the 19[th ]November, 2018 along with IA No.163019/2018 - Application for Modification of Order and IANo. 163020/2018 - Application for Direction.”

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3. When the matter was listed before us today, we repeatedlyasked Shri Nedumpara, why he did not disclose to us the orderdated 22[nd ]October, 2018 when the matter was mentioned beforeus on 14[th] November, 2018. To this, there was no answer. Wethen warned Shri Nedumpara that as a counsel appearing beforethe Court, his primary duty is to disclose all material facts to theCourt before obtaining any order from the Court. We have warnedhim that such unbecoming conduct of an advocate who appearsbefore this Court, will be sternly dealt with should any futureincident of a like nature arise before this Court. We were inclinedto impose heavy costs but have not done so only because theappellant, for whom Shri Nedumpara appears, already appears tobe in dire straits financially.”

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4. We also find that Shri Nedumpara has misconducted himselfrepeatedly before the Debt Recovery Tribunal, Bombay and before theBombay High Court. This is reflected in certain orders passed by theDBombay High Court. Thus, in High Court on its own Motion v.Nedumpara Mathews, Criminal Suo Motu Contempt Petition No. 9 of2012, an order dated 18.09.2012 recorded:

“1. …… Mr. Mathews has disrupted the proceedings of the Courtand refused to conclude, insisting that the Court is a servant ofEjustice and is bound to hear him. No member of the Bar or Litigantcan insist that the mentioning of matters or their listing should beat his or her convenience. Mr. Mathews is habituated to beingdisruptive in Court. Several Benches of this Court have directedthe Registry not to list his matters before those Benches. Today,despite efforts to make him see reason, Mr. Mathews has persistedFin disrupting the proceedings, preventing matters from being calledout. Before we passed this order, which we do with extremecircumspection, we have put Mr. Mathews on notice that shouldhe continue to disrupt the proceedings of the Court, the Courtwould have no option but to issue a notice to show cause underGthe provisions of the Contempt of Courts Act, 1971. Unfortunately,there has been no change in his behaviour.

2. …… If any member of the Bar or the litigating public is allowedto compel the Court to take up a matter at his own convenience,the orderly functioning of the Court will be seriously affected.

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Mr. Mathews has persisted in disrupting the proceedings and hasnot heeded to being counselled.

3. In the circumstances, the registry is directed to issue a noticeto show cause to Mr. Nedumpara Mathews, Advocate callingupon him to state as to why proceedings should not be adoptedagainst him under the Contempt of Courts Act, 1971. The hearingof the notice shall be placed before the appropriate Bench inaccordance with the assignment of work.”

In Lalita Mohan Tejwani v. Special Recovery Officer, Noticeof Motion (L) no. 175 of 2013 in Writ Petition (L) No. 2772 of 2012, byorder dated 20.06.2013, a suo motu notice for criminal contempt wasissued by a Division Bench of the Bombay High Court, stating as follows:

“5. When the present Notice of Motion was called out on 8 May2013, the learned Counsel appearing for the Authorized Officerof Jankalyan Sahakari Bank Ltd., (the Respondent No. 2 herein)tendered an Affidavit dated 25 March 2013 of Mr. A. S. Tambe,Assistant General Manager of Janakalyan Sahakari Bank Ltd.,which indicates that a person posing himself as a Sitting Judge ofthis Court spoke to Mr. A. S. Tambe from a mobile phone whichis traced to be that of Mr. Mathews J. Nedumpara.”

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“8. It is submitted that the affidavit states that Mr. Tambe had aconversation with a person having Mobile Number viz: [REDACTED]and the person at the other end told him that, “I am (name of asitting Judge of this Court) here, Matthews is before me. Askyour Advocate to call me.” The affidavit of Tambe, further statesthat the said mobile belongs to the firm of Advocates – M/s.Nedumpara and Nedumpara, who appear for the Petitioner.

9. In view of the above affidavit, on 13 June 2013 after hearingthe parties, this Court directed the service providers – VodafoneLtd. and Idea Cellular Ltd. to place on record the call details ofthree cell numbers – [REDACTED], [REDACTED] and [REDACTED]for 4 March 2013 and 5 March 2013. This information wasnecessary to determine whether there is any element of truth inthe allegations made in the affidavit dated 25 March 2013 of Mr.Tambe.

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10. Today, affidavits have been filed on behalf of the said serviceproviders, placing on record the call details. Copies of the affidavitsfiled by the service providers are also served upon Advocate Mr.Nedumpara in Court. We also directed the service of a copy ofthe affidavit of Mr. A. S. Tambe dated 25 March 2013 which waskept in a sealed cover, upon Advocate Mr. Mathews J. Nedumparaand the same was done in our presence. On perusal of the callrecords, we find that there has been contact between the abovethree mobile cell numbers.

11. As per the affidavit filed on behalf of Vodafone (India) Ltd.the number [REDACTED] is subscribed in the name of Mr. MathewsJ. Nedumpara and mobile number [REDACTED] is of Mr. SanjeevMohan Tejwani, who is son of the Petitioner. While as per theaffidavit filed on behalf of Idea Cellular Ltd., the mobile number[REDACTED] is subscribed in the name of Mr. Sanjay V. Kaleaddress at Jankalyan Sahakari Bank Ltd. Chembur, Mumbai 400071. Learned Counsel for Respondent-Bank states that mobileno. [REDACTED] is presently being used by Mr. A. S. Tambe,Assistant General Manager of the Respondent-Bank. AdvocateMr. Mathews J. Nedumpara admits that the mobile no. [REDACTED]is his own mobile number.

12. In view of the contents of the affidavits of service providers,it appears that the statements made in the affidavit of Mr. A. S.Tambe if correct, would amount to criminal contempt on the partof the person who spoke from cell no. [REDACTED] to Mr. A. S.Tambe. As per the record of Vodafone, the said cell number is ofAdvocate Mr. Mathews J. Nedumpara and Mr. Mathews J.Nedumpara admits that it is his mobile number. In view of theabove, it appears that this is a fit case for initiating Suo Motuproceedings under the Contempt of Courts Act, 1971 and AdvocateMr. Mathews J. Nedumpara be joined as respondent No. 1 andState of Maharashtra as respondent No. 2 in the Suo MotuContempt Proceedings.

13. The Registry to issue notice to Mr. Mathews J. Nedumparato show cause why appropriate action should not be taken againsthim for Criminal Contempt as defined in the Contempt of CourtsAct, 1971. Since, this Court is only issuing a notice and not issuinga rule at this stage, no further observations are called for.”

In International Asset Reconstruction Company Pvt. Ltd. v.Phoenix Alchemy Pvt. Ltd., Company Petition No. 423 of 2010, by anorder dated 01.03.2014, the Bombay High Court devoted severalparagraphs under the caption “The Conduct of Mr. MathewsNedumpara, Advocate for the ex-Directors”. Excerpts under thissub-head read as follows:

“58. When I told Mr. Nedumpara that he would have his turn toargue after the Advocate for the Official Liquidator, he wasadamant and insisted on raising this issue of maintainability. Hewas addressing the Court in an aggressive, discourteous andoffensive manner. This went on for quite a few minutes, duringwhich time I was repeatedly requesting him to take his seat andawait his turn. During this time, he was not even willing to listento the Court and kept addressing the Court and making remarksthat were most inappropriate and to the effect that he is not gettingan opportunity of being heard and that he was used to ‘insults’from the Court.

59. It was clear to me that this was nothing but a stalling tactic toensure that the matter on the Official Liquidators Report does notproceed. All through these initial few minutes his demeanour wasloud, brash and disrespectful. The Court was crowded and it wasalmost as if Mr. Nedumpara was playing to the galleries, as muchof what he was saying had little to do with the matter or for thatmatter his point of maintainability.”

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“62. Finally, when Mr. Nedumpara was asked to address the Courtin response to the Official Liquidators Report, he insisted onaddressing the Court only on the issue of maintainability of aPetition at the instance of Secured Creditors who had adopted (oras he put it “elected”) other remedies. Even during this part of thehearing, Mr. Nedumpara was extremely disrespectful andoffensive in the manner in which he addressed the Court. Justbecause the Court wanted him to address it on the OfficialLiquidators Report, he repeatedly said how he is not being heard.His tone and tenor was accusatory, often times breaking into LatinMaxims in the context of his most improper suggestion that he isnot being heard or that he was being treated unfairly.

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63. This went on again for quite a few minutes during which timehe resolutely refused to address even a single query from theCourt or address the Court on the merits of the matter/OfficialLiquidator’s Report that was before the Court.

64. Mr. Nedumpara’s demeanour was obstructive and to my mindBintended to interfere with the administration of justice and lowerthe dignity and authority of the Court. In a situation such as this, inmy opinion, the Court would have been entitled to take note of theconduct of Mr. Nedumpara as contempt in the face of the Courtand deal with it summarily and immediately or to direct the issuanceof a Show Cause Notice to treat it as ‘criminal contempt’ underCthe Contempt of Courts Act, 1971, read with the Rules framedthereunder.”

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“69. These judgments establish that conduct of Advocates, suchas has been described by me in the foregoing paragraphs of theOrder, can constitute sufficient reason to issue Show Cause Noticefor criminal contempt or to be dealt with immediately andsummarily as contempt committed in the face of the Court.

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70. Having said that, in this case I have done neither. Let thisOrder be a strict and final warning to Mr. Mathew Nedumparathat the Court will not tolerate this conduct and if such conduct isrepeated in the future, the Court may be constrained to act.”

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5. As a sequel to this order, Shri Nedumpara filed an application inwhich he requested that the aforesaid Single Judge of the Bombay HighCourt should recuse himself from hearing matters in which AdvocateFNedumpara appears for one of the parties. This application was dealtwith by an order dated 23.12.2014 in Brian Castellino v. OfficialLiquidator of M/s. RTec Systems Pvt. Ltd., Official Liquidators ReportNo. 347 of 2014 in Company Petition No. 452 of 2010. In the course ofsubmissions made before the learned Single Judge, a compilation wasGsubmitted by one of the learned counsel. This is reflected in paragraph13 of the said order as follows:

“13. Mr. Kapadia has submitted a compilation, inter alia, containing(i) orders passed by the Single Judges and Division Benches ofthis Court setting out the conduct of Advocate Nedumpara in the H

matters that he appears, (ii) resolutions passed by the DebtRecovery Tribunal, Mumbai, resolving not to take up any matterswhere Advocate Nedumpara and/or his Juniors appear and (iii)criminal complaints filed against Advocate Nedumpara by the DebtRecovery Tribunal, Mumbai for serious offences. Mr. Kapadiahas from the said compilation of documents/orders pointed out asfollows:

(i) That three of the Division Benches and three Single Judges ofthis Court have recused themselves in matters where AdvocateNedumpara has appeared.

(ii) The Division Bench comprising of A.H. Joshi and M.L.Tahaliyani, JJ. has whilst recusing itself vide order dated 22[nd] May,2013 in Writ Petition (L) No. 1272 of 2013 recorded the conductof Advocate Nedumpara and his client as follows:

“1. An affidavit in answer to query put by the Court isfiled.

2. In the affidavit the Petitioner has used language as hisAdvocate’s opinion, expressing impropriety on the part ofcourt in putting questions to the petitioner. The languageexhibits total lack of etiquettes of drafting and lack ofrespect to the court akin to insinuation.

3. Since the litigant and counsel do not respect the courtand express anguish with discourteous language, it isconsidered necessary that this bench should not hear thiscase. Hence we recuse.

4. Liberty to move before the appropriate court.”

(iii) That by an order dated 18[th] September, 2012, a Single Judgeof this Court has issued suo motu criminal contempt notices againstAdvocate Nedumpara.

(iv) That by an order dated 20[th] June, 2013, a Division Bench ofthis Court have issued suo motu criminal contempt notices againstAdvocate Nedumpara.

(v) That by an order dated 9[th] April, 2014, passed by a DivisionBench of this Court it has been observed that Advocate Nedumparahas made reckless, irresponsible and contemptuous allegations A

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against the Bench and the opponents. After recording an apologyof Advocate Nedumpara which is noted as ‘belated’, the DivisionBench has expressed in paragraph 13 that a message goes to alladvocates including M/s. Nedumpara & Nedumpara so that infuture, this Court has no occasion to observe anything or initiateany proceedings. Mr. Kapadia submitted that the aforesaidobservations are in the context of an attempt on the part of thejuniors of Advocate Nedumpara to approach one of the membersof the Bench at his residence and the apologies were foraddressing a letter thereafter to the Hon’ble Chief Justice makingallegations against the learned Judge who refused to give a hearingto the juniors at his residence.

(vi) That by an order dated 1[st] October, 2014, a Division Bench ofthis Court rejected the request for recusal made by AdvocateNedumpara.

(vii) That Advocate Nedumpara addressed letters to the Presidentof India, Vice President of India, Prime Minister of India, HomeMinister of India. Chief Minister of Maharashtra, Minister forlaw and justice, Leader of Opposition, etc. making wild, baseless,contemptuous allegations against the Constitutional functionariesof this Court.

(viii) That a Resolution dated 19[th] May, 2014 was passed by allthree learned Presiding Officers of the Debts Recovery Tribunal,Mumbai (DRT) resolving that no matters of Advocate Nedumparaor his juniors be listed before them. The Resolution is reproducedhereunder:

“A very unfortunate and shocking situation has beencreated today by Advocate Mr. Mathews J. Nedumparaalong with his juniors Mr. Navneet Krishnan, Mr. Nishant,Ms. Rohini and alleged clients in the open Court Hall ofDRT I, II, III and that to the extent that the smoothfunctioning of the Tribunal has come to halt and justicedelivery system has got obstructed. They have willingly andintentionally created this scenario in the open court withulterior motive. The dignity and trust of the Tribunal hasbeen lowered down and all the Officers and staff of theTribunal has been offended. Presiding Officers of the

Tribunals have to retire to their chambers and complainthas also been lodged with the police by the Presiding Officerof DRT I, Mumbai in this regard. We are apprehendingthat this kind of bad and turbulent situation may againtake place and working of the Tribunals may be disturbed.Considering the dimension and seriousness of the situationwe all felt that this situation may be adverted by takingResolution that we should not take up the matters in whichthe aforesaid Advocates are engaged. The litigants mayengage other lawyers in the cases in which the aboveAdvocates are engaged. Meanwhile the Registry is directedto shortlist the cases in which the above said lawyers areengaged and not to place their cases before the Tribunal.This Resolution be notified for information.

Copy of this Resolution is also transmitted to Hon’bleChairperson, DRAT Mumbai for necessary information andneedful.

Dated this 19[th] May, 2014".

(ix) That a complaint has been filed by the DRT, Mumbai, allegingcriminal offences committed by Advocate Nedumpara.”

A reading of this paragraph leaves no manner of doubt that ShriNedumpara is in the habit of terrorising Tribunal members and usingintemperate language to achieve his ends before several Judges of theBombay High Court. The order dated 23.12.2014 then went on to state:

“33. In present times, a huge number of disputes are broughtbefore the Courts for adjudication. The monetary stakes involvedin the matters are also very substantial. In other cases, personalstatus of parties is involved, and these matters are invariablyemotionally charged. The demands of the litigants over theirAdvocates have seemingly increased. Many dishonest/ desperatelitigants along with some lawyers, who are not as honest as theyare expected to be, leave no stone unturned to avoid a Judge thatthey perceive to be inconvenient or unfavourable or to obfuscateissues or to delay the proceedings and frustrate the course ofjustice. To achieve this end, they attempt to criticize judges, castuncalled for aspersions on Judges with the intention that the Judgeso attacked will give up the matter. A judge who is showered with A

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criticisms and insinuations, though baseless, may be inclined torecuse himself so as to stay out of harm’s way of the baselesssuspicion or allegation or to avoid being unpopular or to just avoidtaking over the burden of a matter which is intentionally madeheavier by litigants and/or their Advocates. However, as held bythe Hon’ble Supreme Court in Subrata Roy’s case (supra), aJudge who prefers the recusal route despite knowing that thecriticisms/insinuations made against him are baseless, would notbe true to his oath of dispensing justice without fear or favour. Inmy view, a Judge would be failing in his duty if he endeavours tobecome popular amongst the members of the bar or members ofthe public by avoiding difficult situations or following the route ofappeasement. A Judge accepts judgeship to dispense justice withoutfear or favour and not to attain popularity of any kind. Again, hewill not be true to his oath if he feels that it is convenient to recusehimself from a matter rather than facing a lawyer or a litigantwho gives him sleepless nights by criticizing him or castingaspersions on him which are totally incorrect and untrue. In thisregard, the observations made in the case of Triodos Bank NVvs. Dobbs, [(2005) EWCA 468] are apposite:

“It is always tempting for a judge against whom criticismsare made to say that he would prefer not to hear furtherproceedings in which the critic is involved. It is temptingto take that course because the judge will know that thecritic is likely to go away with a sense of grievance if thedecision goes against him. Rightly or wrongly a litigantwho does not have confidence in the Judge who hears hiscase will feel that if he loses, he has in some way beendiscriminated against. But it is important for a judge toresist the temptation to recuse himself simply because itwould be more comfortable to do so. The reason is that –If judges were to recuse themselves whenever a litigant –whether it be a represented litigant or a litigant in person– criticized them (which sometimes happens notinfrequently) we would soon reach the position in whichlitigants were able to select judges to hear their cases,simply by criticizing all the judges that they did not wantto hear their case. It would be easy for a litigant to produce a situation in which a judge felt obliged to recuse himselfsimply because he had been criticized – whether thatcriticism was justified or not.”

34. I am therefore of the view that the grounds on which theApplication of recusal is made by Advocate Nedumpara and hisclient are wholly baseless and unfounded. I have no doubt thatthe present Application seeking recusal of this Court, to borrowthe language of the Hon’ble Supreme Court is to avoid this Court,obfuscate issues, delay the proceedings and frustrate the courseof justice. The Application is therefore rejected. I have decidednot to deal with the compilation of documents relied upon by Mr.Kapadia in support of his contention. Instead I would rather joinMr. Chinoy, the Learned Amicus Curiae, in advising AdvocateNedumpara to introspect and find fault with oneself before findingfaults with others. I may end by expressing a sincere hope thatthe assurance given by Advocate Nedumpara to this Court thathe takes the advice of Mr. Aspi Chinoy to heart, that he willintrospect and correct himself wherever he has gone wrong, isfulfilled in the right spirit.”

6. In Lalita Mohan Tejwani v. Special Recovery Officer andSales Officer, Jankalyan Sahakari Bank Ltd. and Ors., Writ PetitionNo. 2334 of 2013, a Division Bench of the Bombay High Court, by anorder dated 15.03.2017, recorded as follows:

“3. Mr. Nedumpara, learned counsel for the petitioner replied thathe does not want to answer any questions of the Court as for thepetitioner as “dominus litis” he should be heard. We had notprevented Mr. Nedumpara from arguing but wanted him toanswer the basic issue as urged on behalf of respondent Nos. 1and 2. At this stage, the manner in which Mr. Nedumparaconducted himself and behaved before the Court to say the leastwas most abusive, contemptuous, lowering the dignity of theCourt, as also unbecoming of an advocate and officer of the Court.This conduct of Mr. Nedumpara, in our opinion, amounts tocontempt in the face of the Court. Not only that but his demeanouras an officer of the Court was also highly objectionable. Mr.Nedumpara not only created a scene in the Court but also madeabuses at the learned counsel appearing for respondent Nos. 1and 2. In fact, learned counsel appearing for respondent Nos. 1

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and 2 pointed out that on every occasion Mr. Nedumpara wasbehaving and conducting himself in this manner.

4. What happened thereafter is further shocking. When the hearingwas in progress and the learned counsel for respondent Nos. 1and 2 was pointing out to us the details of the earlier decisions andthe similar proceedings, Mr. Nedumpara walked out of the arguingseat and went behind and sat in the last row showing utter disregardand indifference to the sanctity of the court proceedings.Thereafter, when learned counsel for respondent Nos. 1 and 2was addressing this Court, Mr. Nedumpara came forward andinterrupted the learned counsel for respondent Nos. 1 and 2 andwas again abusive towards the Court, and vehemently insistedthat he be heard and he need not answer any query of the Court.When we pointed out that our queries on the basic issues wererequired to be answered so that further hearing can be proceeded,Mr. Nedumpara walked out of the Court and then did not return.

5. We find that what happened in the Court today is not only mostunfortunate but highly objectionable affecting the solemnity andsanctity of the judicial proceedings. The conduct of Mr.Nedumpara has seriously affected not only the dignity of the Courtbut also the interest of administration of justice. We may observethat the solemn function of the Court is to dispense justiceaccording to law and, therefore, it is well settled that theproceedings inside the Court are always expected to be held in adignified and an orderly manner. The counsel of the Court isexpected to be a responsible officer of the Court and if suchcontemptuous behavior on the part of Mr. Nedumpara is notseriously dealt with, the same would erode the dignity of the Courtand corrode the majesty of the Court impairing confidence of thepublic in the efficacy of the institution of the Court. This conductof Mr. Nedumpara, in our opinion, amounts to a gross contemptof the Court and, therefore, it is necessary that an action as perthe provisions of the Contempt of Court Act, 1971 is initiated.

6. We, accordingly, issue notice to Mr. Mathew Nedumpara,Advocate under Article 215 of the Constitution of India and section14 of the Contempt of Court Act, returnable after two weeks.Mr. Nedumpara is directed to show cause as to why action shouldnot be taken against him under Article 215 of the Constitution of India and under the Contempt of Court Act on his conduct andbehavior as noted by us above in detail.”

7. Shri Nedumpara features in yet another order passed by alearned Single Judge of the Bombay High Court on 05.03.2018 in AnandAgarwal and Anr. v. Vilas Chandrakant Gaonkar and Ors., Noticeof Motion (L) No. 706 of 2017 in Commercial Suit No. 614 of 2017. Theorder states as follows:

“1. At this point of time, the Judiciary is mired in challenges of avery grave nature, perhaps like never before. It is being observedthat there is, amongst some litigants and their Advocates, virtuallyno fear or hesitation in making false statements andmisrepresentations before the Court, which should under any andall circumstances be dealt with the iron hand of the judiciary withzero tolerance for such blatantly unethical and mala-fide behaviour.

2. The dignity and respect of the Court along with its prescribedprocedures is being unabashedly violated by certain litigants whoare using foul and unfair means to demean and denounce theaugust Judiciary by making frivolous and baseless allegationsagainst the Judges, and/or their opponents and their Advocates,with a view to rescind and back-track on solemn undertakingsand statements earlier made in Court. This malicious modusoperandi of certain dishonest litigants is absolutely unacceptable,as it seeks to subvert the very foundations of justice that theJudiciary is committed to uphold. With no merit in their case, andin a bid to avert an unfavourable order being passed against them,such dishonest litigants collude with their Advocates to useunderhanded means to ensure favourable orders and theirconsequent success in litigation instituted or defended by them.

3. Certain Advocates sadly seem to have forgotten the code ofethics that enjoins upon all Advocates, that they are Officers ofthe Court first and Advocates of their clients only thereafter. It isanguishing to note that such Advocates facilitate the unethicalmisadventures of their clients, often encouraging their clients’dishonest practices, causing grave stress to the Judiciary, andunfortunately bringing the entire judicial system to disrepute. Ithas become a vicious and despicable cycle wherein dishonestlitigants with malafide intentions seek out unethical Advocates, AB

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who for hefty fee and the lure of attracting similar new andunscrupulous clients, conveniently choose to disregard and/orforget all ethics and the code of conduct enjoined upon this augustprofession. It is with a heavy heart, that Courts at times note thatclients have no hesitation in replacing good and honest Advocates,with unscrupulous ones, who go to any dishonest lengths, merelyto secure favourable orders for their clients.

4. The present case and the conduct of the Defendant No. 1 /Applicant strongly affirms the aforesaid observations. TheDefendant No.1 Shri Vilas Chandrakant Gaokar had throughoutthe hearing of his case, remained present and appeared beforethe Court with his Counsel as well as the Advocate on record. Hetook the assistance of this Court in resolving his issues pertainingto the Suit, gave undertakings in pursuance of it, obtained consentorders and also acted in consonance with the same. However,Defendant No.1 breached one of the undertaking given by himand being fully aware of the consequences thereof, he craftilyand quickly changed his Advocates (who had already beenpreviously changed) and briefed Counsel Mr. Mathew Nedumpara,who in turn advised him to file this Notice of Motion. In this Noticeof Motion, he has stated that all the previous orders passed by thisCourt are null and void for reasons which are utterly false anddishonest to the knowledge of his client Shri Vilas ChandrakantGaokar.

5. This malicious and mala-fide Notice of Motion sets out/allegestotally baseless and contemptible allegations against this Court,which are completely unacceptable and are a mere shenanigan tocircumvent the action of contempt of Court. This reprehensibleattempt at intimidating and manipulating this Court into not takingany action under the Law of Contempt calls for censure in thestrongest terms. In an attempt to cover up the mala-fide intent,which is crystal clear and amply evident, the litigant Shri VilasChandrakant Gaokar dishonestly/falsely reiterates in theApplication that he holds the Court in the highest esteem andrespects its integrity. It will not be out of place to mention herethat in an earlier matter before me, in which Mr. MathewNedumpurra appeared for one of the parties, he, after repeatedlyreiterating that he holds the Court in the highest esteem and respects its integrity, had proceeded to pray that I recuse myselffrom all the matters in which he appears. That Application was,however, rejected by a detailed Judgment dated 23[rd] December,2014, reported in 2015 (2) Bom. C.R. 247.

6. Therefore, such unethical and unacceptable behaviour needsto be met with the iron hand of the Court. The Courts must tackleall such unethical conduct fearlessly by taking stern action againstlitigants, and if need be their unethical Advocates as well. A failureto do so, will result in seriously jeopardising the Judiciary and willerode the Rule of Law, which is absolutely integral to the justicesystem in the country. The Courts must act swiftly and firmly,without getting intimidated by false and frivolous charges, andutterly baseless, malicious and dishonest allegations that arelevelled against the Judges.”

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“18. …… Again, the Defendant No.1 being aware that he hasmade false and incorrect statements in the Affidavit in support ofhis above Notice of Motion and his earlier Advocates will notsupport his dishonest stand, has changed his Advocates anddishonestly contended, through Mr. Mathew Nedumpara, that itwas at the instance of the Plaintiffs that this Court recorded thatby consent the matter be treated as part-heard, and that he hadnot given his consent. Though it is true that my regular assignmentfrom June, 2017 did not pertain to commercial matters, a statementshowing the disposal of the 30 matters finally disposed of and thebalance matters which were heard and treated as part-heard byme, by consent of the parties was prepared by the Section Officer,Statistics Department which was subsequently handed over tothe Registrar, Judicial-I, who forwarded the same to the LearnedChief Justice. In the said statement forwarded to the LearnedChief Justice, even the dates fixed by me for hearing of the matterstreated as part-heard, including the dates fixed in the above matterafter reopening of the Court on 5[th] June, 2017, are also mentioned.After the Court reopened, Defendant Nos. 1 to 5, along with theirAdvocates, appeared before me on 12 different dates of hearingand several orders were passed by me in the matters without anyparty or the Advocates representing them making any grievance.As stated earlier, it is only when the Defendant No. 1 wanted to A

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wriggle out of his undertakings that he discharged his earlierAdvocates who were aware of the true and correct facts in thematter and instead briefed Mrs. Rohini Amin and Mr. MathewNedumpara to make the above Application, by suppressing facts,and on grounds which are false and dishonest to his knowledge.

19. After the Order dated 26[th] April, 2017, was served onDefendant Nos. 1 to 5, the manner in which the matter hasprogressed is set out in detail by the Plaintiffs in their Affidavit-in-Reply and in their submissions at the hearing of this Notice ofMotion. The same is referred to hereinafter. It is pertinent to notethat Defendant No. 1 has in his Rejoinder reiterated his allegationsand made a general denial, but has not specifically dealt with thefacts set out in the Affidavit in Reply. Even during his argumentsMr. Nedumpara has not submitted that what is stated by thePlaintiffs in the Affidavit in Reply is incorrect.”

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“49. As set out hereinabove, Defendant No. 1 was conscious ofthe fact that all the allegations made by him are false and incorrect.He was well aware that his earlier Advocate will not be a party tohis dishonest design of making allegations against the Court onlybecause he was wanting to wriggle out of his undertakingsrecorded in the Order dated 12[th] May, 2017. He therefore, changedhis Advocate and briefed Mr. Mathew Nedumpara to appear onhis behalf in the above Notice of Motion, making false andscandalous allegations against this Court.

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50. In view of the facts and circumstances narrated hereinabove,the case laws relied upon by Mr. Nedumpara does not assist himin any way. As held in the decisions of the Hon’ble SupremeCourt and this Court, set out hereinabove, the undertakings givenby Defendant No. 1 are binding on him and he is estopped fromgoing back on the same.

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G51. In view thereof, the following Order is passed:

(i) The above Notice of Motion is dismissed.

(ii) The Defendant No. 1 is directed to pay exemplary costs ofRs.10 Lacs to the Plaintiffs within a period of two weeks fromtoday.”

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8. The result of this order was that Shri Nedumpara feltemboldened enough to file a writ petition, being Writ Petition (L) No.1180 of 2018, in his own name against the Single Judge of the BombayHigh Court who passed this order, the said Single Judge being arrayedas the sole respondent in the said petition. The prayers in the said petitionare set out in paragraph 2 of the order dated 26.07.2018. The petitionwas dismissed holding that it was not maintainable. Paragraph 2 of thesaid petition reads as follows:

“2. The learned Judge (respondent herein) who has taken up thesaid Notice of Motion, vide Judgment pronounced on 05/03/2018rejected the Motion moved by said Vilas Gaokar by imposingexemplary costs of Rs. 10,00,000/- on the said Vilas Gaokar.However, while rejecting the Notice of Motion, the learned Judgemade certain observations about the petitioner which accordingto the petitioner are prejudicial. In the circumstances, the petitionerhas filed this petition under Article 226 of the Constitution of Indiaseeking following reliefs:

a. To declare that the citizen whose fundamental rights areinfringed by a judicial order is entitled to all legal remedies,common law, equitable and declaratory, compensation anddamages, so too, even criminal action like suchinfringement at the hands of legislature, executive andfellow citizens, and to assume otherwise will render partIII of the Constitution nugatory.

b. In the event of prayer (a) above being granted in favourof the Petitioner, he is entitled to initiate civil and evencriminal proceedings against Respondent no. 1 (thoughthe Petitioner intends to institute no criminal proceedings)in as much as the observations of Justice Kathawalla, onerendered behind his back is exfacie false and defamatory,even assuming that the said observations were made withoutany ulterior or malicious intentions.

c. To declare that no distinction can be made betweensubordinate judiciary and superior judiciary in so far asthe prohibition contained in Article 13 (2) of the Constitutionis concerned and that the superior judiciary also fallswithin the ambit of “State” under Article 12 just like thesubordinate judiciary.

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d. To grant compensation of Re. 1/- as damages, thoughthe damage suffered by the Petitioner by virtue of the Orderat Exhibit A, dated 05.03.2018 at the hands of JusticeKathawalla is irreparable and cannot be adequatelycompensated in terms of money.

e. Without prejudice to the reliefs (a) to (d) above and infurtherance thereof relegate the Petitioner to the civil courtfor the enforcement of the remedies vested in him, hisfundamental rights being violated by virtue of Ex P1 atthe hands of Justice Kathawalla, Respondent no. 1 above.

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f. Any other order as this Hon’ble Court may deem fit inthe interest of justice.”

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It is clear that prayers (b), (d), and (e) are clearly contemptuous,and an attempt to bring the administration of justice by a premier HighCourt of this country to a grinding halt. If lawyers can be bold enough tofile writ petitions against judges of a High Court on observations judiciallymade by a Judge of the High Court, the very independence of the judiciaryitself comes under threat. Given the course of behaviour of ShriNedumpara before Tribunals, the Bombay High Court, and this Court, itis clear that the said advocate has embarked on a course of conductwhich is calculated to defeat the administration of justice in this country.

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9. When contempt is committed in the face of the Court, judges’hands are not tied behind their backs. The majesty of this Court as wellas the administration of justice both demand that contemptuous behaviorof this kind be dealt with sternly. An early judgment of this Court inSukhdev Singh Sodhi v. Chief Justice S. Teja Singh, 1954 SCR 454Fproceeded cautiously, but made it clear that where a judge is personallyattacked, it would be proper for the judge to deal with the matter himself,in cases of contempt in the face of the Court. This Court stated the lawthus:

“We wish however to add that though we have no power to ordera transfer in an original petition of this kind we consider it desirableon general principles of justice that a judge who has been personallyattacked should not as far as possible hear a contempt matterwhich, to that extent, concerns him personally. It is otherwisewhen the attack is not directed against him personally. We do not G

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lay down any general rule because there may be cases wherethat is impossible, as for example in a court where there is onlyone judge or two and both are attacked. Other cases may alsoarise where it is more convenient and proper for the Judge to dealwith the matter himself, as for example in a contempt in faciecuriae. All we can say is that this must be left to the good senseof the judges themselves who, we are confident, will comfortthemselves with that dispassionate dignity and decorum whichbefits their high office and will bear in mind the oft quoted maximthat justice must not only be done but must be seen to be done byall concerned and most particularly by an accused person whoshould always be given, as far as that is humanly possible, a feelingof confidence that he will receive a fair, just and impartial trial byJudges who have no personal interest or concern in his case.”

10. In Leila David (2) v. State of Maharashtra, (2009) 4 SCC578, two learned Judges differed on whether contempt in the face of theCourt can be dealt with summarily, without any need of issuing notice tothe contemnors, and whether punishment can be inflicted upon themthere and then. Pasayat, J. held that this is, indeed, the duty of the Court.Ganguly, J. differed. A three-Judge Bench of this Court, in Leila David(6) v. State of Maharashtra, (2009) 10 SCC 337, settled the law, makingit clear that Pasayat, J.’s view was the correct view in law. This Courtheld:

“28. As far as the suo motu proceedings for contempt areconcerned, we are of the view that Arijit Pasayat, J. was wellwithin his jurisdiction in passing a summary order, having regardto the provisions of Articles 129 and 142 of the Constitution ofIndia. Although, Section 14 of the Contempt of Courts Act, 1971,lays down the procedure to be followed in cases of criminalcontempt in the face of the court, it does not preclude the courtfrom taking recourse to summary proceedings when a deliberateand wilful contumacious incident takes place in front of their eyesand the public at large, including Senior Law Officers, such as theAttorney General for India who was then the Solicitor General ofIndia.

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29. While, as pointed out by Ganguly, J., it is a statutory requirementand a salutary principle that a person should not be condemnedunheard, particularly in a case relating to contempt of courtinvolving a summary procedure, and should be given an opportunityof showing cause against the action proposed to be taken againsthim/her, there are exceptional circumstances in which such aprocedure may be discarded as being redundant.

30. The incident which took place in the courtroom presided overby Pasayat, J. was within the confines of the courtroom and waswitnessed by a large number of people and the throwing of thefootwear was also admitted by Dr. Sarita Parikh, who withoutexpressing any regret for her conduct stood by what she haddone and was supported by the other contemnors. In the light ofsuch admission, the summary procedure followed by Pasayat, J.cannot be faulted.”

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“35. Section 14 of the Contempt of Courts Act no doubtcontemplates issuance of notice and an opportunity to thecontemnors to answer the charges in the notice to satisfy theprinciples of natural justice. However, where an incident of theinstant nature takes place within the presence and sight of thelearned Judges, the same amounts to contempt in the face of theCourt and is required to be dealt with at the time of the incidentitself. This is necessary for the dignity and majesty of the courtsto be maintained. When an object, such as a footwear, is thrownat the Presiding Officer in a court proceeding, the object is not tomerely scandalise or humiliate the Judge, but to scandalise theinstitution itself and thereby lower its dignity in the eyes of thepublic.”

11. Leila David (6) (supra) has been followed in Ram NiranjanRoy v. State of Bihar & Ors., (2014) 12 SCC 11 thus:

“16. Thus, when contempt is committed in the face of the HighCourt or the Supreme Court to scandalise or humiliate the Judge,instant action may be necessary. If the courts do not deal withsuch contempt with strong hand, that may result in scandalisingthe institution thereby lowering its dignity in the eyes of the public.The courts exist for the people. The courts cherish the faith reposed

in them by people. To prevent erosion of that faith, contemptcommitted in the face of the court need a strict treatment. Theappellant, as observed by the High Court was not remorseful. Hedid not file any affidavit tendering apology nor did he orally tell theHigh Court that he was remorseful and he wanted to tenderapology. Even in this Court he has not tendered apology. Therefore,since the contempt was gross and it was committed in the face ofthe High Court, the learned Judges had to take immediate actionto maintain honour and dignity of the High Court. There was noquestion of giving the appellant any opportunity to make hisdefence. This submission of the appellant must, therefore, berejected.”

12. In R.K. Anand v. Delhi High Court, (2009) 8 SCC 106, athree-Judge Bench of this Court examined the law and stated that adirection prohibiting the advocate from appearing in a Court for a specifiedperiod was a punishment that could be imposed in the contemptjurisdiction. After examining the judgments on the point, this Court held:

“238. In Supreme Court Bar Assn. [(1998) 4 SCC 409] thedirection prohibiting an advocate from appearing in court for aspecified period was viewed as a total and complete denial of hisright to practise law and the bar was considered as a punishmentinflicted on him. [Though in para 80 of Supreme Court Bar Assn.case [(1998) 4 SCC 409], as seen earlier (in para 230 herein),there is an observation that in a given case it might be possible forthis Court or the High Court, to prevent the contemnor advocateto appear before it till he purges himself of the contempt.] In Ex.Capt. Harish Uppal [(2003) 2 SCC 45] it was seen not aspunishment for professional misconduct but as a measurenecessary to regulate the court’s proceedings and to maintain thedignity and orderly functioning of the courts. We may respectfullyadd that in a given case a direction disallowing an advocate whois convicted of criminal contempt from appearing in court maynot only be a measure to maintain the dignity and orderly functioningof the courts but may become necessary for the self-protectionof the court and for preservation of the purity of court proceedings.Let us, for example, take the case where an advocate is shown tohave accepted money in the name of a judge or on the pretext ofinfluencing him; or where an advocate is found tampering with AB

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Athe court’s record; or where an advocate is found actively takingpart in faking court orders (fake bail orders are not unknown inseveral High Courts!); or where an advocate has made it into apractice to browbeat and abuse judgesand on that basis has earnedthe reputation to get a case transferred from an “inconvenient”court; or where an advocate is found to be in the habit of sendingBunfounded and unsubstantiated allegation petitions against judicialofficers and judges to the superior courts. Unfortunately, theseexamples are not from imagination. These things are happeningmore frequently than we care to acknowledge.

239. We may also add that these illustrations are not exhaustivebut there may be other ways in which a malefactor’s conduct andactions may pose a real and imminent threat to the purity of courtproceedings, cardinal to any court’s functioning, apart fromconstituting a substantive offence and contempt of court andprofessional misconduct. In such a situation the court does notonly have the right but it also has the obligation cast upon it toprotect itself and save the purity of its proceedings from beingpolluted in any way and to that end bar the malefactor fromappearing before the courts for an appropriate period of time.

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240. It is already explained in Ex. Capt. Harish Uppal [(2003) 2ESCC 45] that a direction of this kind by the Court cannot beequated with punishment for professional misconduct. Further,the prohibition against appearance in courts does not affect theright of the lawyer concerned to carry on his legal practice inother ways as indicated in the decision. We respectfully submitthat the decision in Ex. Capt. Harish Uppal v. Union of IndiaF[(2003) 2 SCC 45] places the issue in correct perspective andmust be followed to answer the question at issue before us.”

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13. Conduct of this kind deserves punishment which is severe.GThough we could have punished Shri Nedumpara by this order itself, inthe interest of justice, we issue notice to Shri Nedumpara as to thepunishment to be imposed upon him for committing contempt in the faceof the Court. Notice returnable within two weeks from today.

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NATIONAL LAWYERS CAMPAIGN FOR JUDICIALTRANSPARENCY AND REFORMS v. UNION OF INDIA

14. This judgment is to be circulated to the Chief Justice of everyHigh Court in this country, the Bar Council of India, and the Bar Councilof Kerala, through the Secretary General, within a period of four weeksfrom today.

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15. Insofar as the Writ Petition is concerned, the Writ Petition, inessence, seeks a second review of our judgment reported in IndiraBJaising v. Supreme Court of India through Secretary General andOrs., (2017) 9 SCC 766. Even otherwise, it is settled law that an Article32 petition does not lie against the judgment of this Court. We are also ofthe view that Section 16(2) of the Advocates Act, 1961 is a provisionwhich cannot be said to be unconstitutional and the designation of SeniorCAdvocate cannot be as a matter of bounty or as a matter of right.

16. For these reasons, the Writ Petition stands dismissed.

Ankit Gyan

Writ Petition dismissed.

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